Two laws deal with the environment generally:

• National Environmental Management Act (No 107 of 1998) (NEMA)
• Environment Conservation Act (No 73 of 1989)

Two other framework laws, the Promotion of Administrative Justice Act and the Promotion of Access to Information Act, are not concerned specifically with the environment, but they give content to environmental rights and issues. These laws should be considered when dealing with all environmental issues.

NATIONAL ENVIRONMENTAL MANAGEMENT ACT (No 107 of 1998) (NEMA)

NEMA is relevant to the regulation of all three of the environmental areas referred to, namely land-use planning and development, natural resources, pollution control and waste management.

The object of NEMA is to provide a framework for cooperative environmental governance (making sure that the government authorities coordinate their efforts to manage the environment) and aims to achieve this by establishing principles for:

• State decision-making on matters that affect the environment and procedures for co-ordinating environmental functions

WHAT ARE THE NEMA PRINCIPLES?

NEMA sets out a range of national environmental management principles, some of which are set out below. The actions of all state institutions that ‘may

significantly affect the environment’ must comply with these principles. These state institutions would include national, provincial and local government as well as state institutions like Eskom. The importance of these principles has been recognised by South African courts and include:

• Environmental management must put people and their needs first
• Development must be socially, environmentally and economically sustainable
• There should be equal access to environmental resources, benefits and services to meet basic human needs
• Government should promote public participation when making decisions about the environment
• Communities must be given environmental education
• Workers have the right to refuse to do work that is harmful to their health or to the environment
• Decisions must be taken in an open and transparent manner and there must be access to information
• The costs of remedying pollution, environmental degradation and negative impacts on health must be paid for by those responsible for such pollution, degradation and health impacts (the ‘polluter pays’ principle)
• The role of youth and women in environmental management must be recognised
• The environment is held in trust by the state for the benefit of all South Africans
• The utmost caution should be used when permission for new developments is granted

HOW DOES NEMA PROTECT THE ENVIRONMENT?

NEMA provides a range of tools aimed specifically at protecting the environment. These include the following:

• Integrated environmental management: NEMA regulates the system of environmental impact assessments (EIA). The Government has passed several EIA regulations in terms of NEMA which set out the EIA processes and requirements. These require that the potential impact on the environment of certain listed activities must be considered, assessed and reported to the relevant authorities. There are several lists of activities. One list sets out activities for which a full environmental impact assessment is required before such activities can be carried out, while another list sets out activities for which only a basic environmental assessment is required before the activities may be carried out. A further list sets out activities in specific geographical areas that require environmental authorisation.
• Duty of care to protect the environment: People whose activities cause significant pollution or degradation (spoiling) of the environment must take reasonable steps to prevent the pollution or degradation from happening, or to prevent such pollution or degradation from continuing. If the activity is authorised by law or cannot reasonably be avoided or stopped, NEMA requires that the responsible person take steps to minimise (lessen) and remedy the pollution or degradation.
• Worker protection: Workers can refuse to do environmentally hazardous work.
• Emergency situations: NEMA sets out detailed procedures that must be followed by people in the case of an emergency incident occurring which will impact on the environment.
• Protection of whistleblowers: People who disclose information about an environmental risk (whistleblowers) are protected.
• Private prosecution: People can prosecute others if it is in the public interest or in the interest of protecting the environment where the state fails to do so.
• Access to environmental information: People have the right to have access to environmental information from the government or private persons.
• Controlling the use of vehicles in the coastal zone: the Off-Road Vehicle Regulations (ORV Regulations) regulate the use of vehicles on the shoreline and the establishment of boat launching facilities.

ADMINISTRATION AND ENFORCEMENT

NEMA provides for the enforcement of provisions of certain environmental Acts and allows the Ministers of Forestry, Fisheries and the Environment, Water and Sanitation, Mineral and Petroleum Resources, or the MEC of the provincial department responsible for environmental management to appoint Environmental Management Inspectors to implement this function.

In terms of Section 24G of the National Environmental Management Laws Amendment Act (2 of 2022) (NEMLAA), if a person has started a listed activity without an environmental authorisation (EA) or waste management license (WML) in terms of NEMA, that person can submit an application to the authority in charge in terms of Section 24G of NEMA. If this is successful, the person will be allowed to continue lawfully with the particular activity. This is referred to as the ‘rectification provision’.  Where a person starts with a listed activity without the required EA or WML a maximum administrative fine of R10 million may be imposed in certain circumstances. This aims to prevent people from starting activities without the necessary EA or WML. 

What is a ‘listed activity’?

In terms of the environmental management principles of NEMA certain activities that may harm the environment are referred to as ‘Listed activities’ and require Environmental Authorisation (EA) from the Department of Forestry, Fisheries and Environment. For a list of these activities See: NEMA: Listing Notice 1: List of activities and competent authorities identified in terms of sections 24(2) and 24D. 

WHEN CAN YOU USE NEMA TO MAKE A COMPLAINT?

NEMA says you can take legal action to enforce any environmental law or a principle of NEMA:

• To protect your own interest
• To protect someone else’s interests who cannot do so
• On behalf of a group of people whose interests are affected
• If the legal action is in the public interest
• If the legal action is in the interest of protecting the environment

WHAT DOES NEMA ALLOW YOU TO COMPLAIN ABOUT?

A person can make a complaint or take legal action under NEMA if:

• Someone, including the government, has broken an environmental law, including NEMA
• The government has not complied with a principle of NEMA
• The government has permitted an activity or development that affects the environment, without properly checking how it could affect the environment and people
• Someone, including the government, has caused serious pollution or damage to the environment
• A person has been punished for refusing to do work that might harm the environment, or for reporting someone who is harming the environment
• A major accident (emergency incident) that threatens the public or the environment has taken place and there has not been a proper report about it nor has there been a clean-up operation
• The state has not prosecuted a person for breaking an environmental law and you believe that they might be guilty.

EXAMPLE

An explosion releases a cloud of poisonous gas. Residents are warned on the radio to go indoors and shut their windows, and asthmatics are told to seek urgent medical treatment. People are told what kind of gas it is. The health department and municipal emergency services are told how to treat people who get sick from the gas.

NEMA requires the company that caused this incident to:

• Minimise (reduce) the risk and to clean up the mess
• Find out how the incident has affected public health
• Send a report to government within 14 days of the accident which deals with:
  • The nature and causes of the incident
  • Substances released and how they could affect human health and the environment
  • What was done to prevent this from happening again

If the company does not take these steps, action can be taken to protect the environment and public health.

WHAT ACTION CAN YOU TAKE UNDER NEMA?

You can take action under NEMA not only when someone breaks the law, but also when someone has a duty to do something and does nothing. For example, the government has a duty to stop people from polluting rivers. If government does nothing to stop the pollution, you can take action to compel government to fulfill its duty. Therefore, if you feel that the government or any person has violated, or is violating, an environmental law, including NEMA, you can:

• Go to the police and lay a criminal charge
• Approach government regarding the appointment of a facilitator so that the issue can be referred to conciliation
• Ask the Director General to investigate (See Complaining to the Director General)
• Refuse to work if it could cause environmental damage
• Alert people to an environmental risk by ‘whistleblowing’
• React to emergency incidents
• Approach the Public Protector
• Approach the South African Human Rights Commission or
• Approach a court for an order:
  • To stop the person or government from breaking the law,
  • To compel government to stop the person from breaking the law, or
  • For the responsible person to do a clean-up of the pollution if they haven’t done this when they should have

CONCILIATION UNDER NEMA

NEMA allows a person to request government to appoint a facilitator in order to facilitate meetings of interested and affected parties, with the intention of reaching an agreement on referring a disagreement to conciliation.

ENVIRONMENT CONSERVATION ACT (No 73 of 1989)

The Environment Conservation Act is another law that relates generally to the environment. This Act has largely been replaced by NEMA and only a few relevant sections remain. These sections relate to:

• Limited development areas; and
• Regulations regarding noise, vibration and shock